August 14, 2022

Volume XII, Number 226

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August 12, 2022

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Massachusetts Court Strikes Down Restriction on Access to Solar Project

In Tracer Lane II Realty, LLC v. City of Waltham, Case No. SJC-13195 (June 2, 2022), the Massachusetts Supreme Judicial Court affirmed the Land Court's holding that City officials violated state law when they determined that a road located on residentially zoned land could not be used to access a one-megawatt solar project on commercially zoned land.

The Court held that the municipality's prohibition on the use of the access road to serve the solar project violated section 3 of the Massachusetts Zoning Act, which provides that local zoning ordinances and decisions cannot "prohibit or unreasonably regulate the installation of solar energy systems or the building of structures that facilitate the collection of solar energy, except where necessary to protect the public health, safety or welfare." Mass. Gen. Laws ch. 40A, § 3. In so ruling, the Court held that where Section 3 of the Zoning Act applies to "solar energy systems" and "structures that facilitate the collection of solar energy," "we conclude that the access road is part of the solar energy system… [given] the access road's importance to the primary solar energy collection system…[in] facilitat[ing]the primary system's construction, maintenance, and connection to the electrical grid…."

The Court went a step further, observing that the City's zoning code, which allows for large-scale solar energy facilities to be developed on, at most, two percent of the City's land zoned for industrial purposes, "unduly restricts" solar energy systems that "are key to promoting solar energy in the Commonwealth." Finding that this provision of the zoning code failed to serve any legitimate purpose of protecting the public health, safety, or welfare, the Court concluded that its severe restriction on the development of large-scale solar energy "restricts rather than promotes the legislative goal of promoting solar energy" and, in so doing, violates Section 3 of the Zoning Act.

The decision is an important reminder of the role solar energy plays in achieving the Commonwealth’s state-wide clean energy goals and demonstrates the lengths to which courts will go to limit localities’ zoning efforts that hamper these goals.

© 2022 Beveridge & Diamond PC National Law Review, Volume XII, Number 187
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About this Author

Brian C. Levey Real Estate Attorney Beveridge & Diamond Boston, MA & Framingham, MA
Principal

Brian has more than 20 years of project development experience before permit-granting authorities and in court.

Permitting

Brian's real estate development and land use and zoning law experience focuses on the representation of builders, developers, and property owners seeking all types of permits and approvals — special permits, site plan approvals, variances, and comprehensive permits — before dozens of boards throughout ...

617-419-2333
Hilary T. Jacobs Environmental Litigation Attorney Beveridge & Diamond Washington, DC
Associate

Hilary maintains a general environmental litigation and regulatory practice, working with clients nationwide across industrial sectors.

She joined the Firm following her graduation from the University of Maryland Francis King Carey School of Law (UM Carey Law). 

While at UM Carey Law, Hilary served as a law clerk in the U.S. Environmental Protection Agency's Office of Enforcement and Compliance Assurance, Water Enforcement Division, and served as Articles Editor for the Maryland Law Review. She also worked in the University of Maryland’s Environmental Law Clinic to...

202-789-6086
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